House passes FOIA reform, again

A bill aimed at speeding and broadening the release of information under the Freedom of Information Act passed the House Monday afternoon on a voice vote.

The FOIA Oversight and Implementation Act is similar to but more expansive than a FOIA reform bill that passed the House in 2014, but died after the Senate passed a non-identical version of the bill and the House failed to act on it before that Congress ended.

The measure seeks to buttress the presumption in favor of disclosure that agencies and federal courts sometimes use when handling FOIA requests. The administrations of Presidents Barack Obama and Bill Clinton issued executive directives imposing such a policy, but President George W. Bush's administration issued a contrary memo seeking to roll back that presumption.

The language in the legislation directs agencies to withhold information requested under FOIA only when there is "foreseeable harm" to one of the interests protected by a FOIA exemption, such as privacy or national security. In addition, withholding on the elastic basis of "deliberative process," as well as attorney-client privilege and similar privileges would not be permitted for information more than 25 years old.

The bill would deny agencies the right to use a privacy exemption in FOIA to withhold the names of agency employees engaged in official acts. Due to other legal provisions, that portion of the bill would likely have a limited impact in the Defense Department and in law enforcement agencies, but could have a significant impact elsewhere in government.

The measure also contains several provisions designed to make it easier to request information, mandating a central portal to distribute FOIA requests government-wide and online disclosure of all records that are the subject of three or more requests.

The legislation was approved on an expedited basis on the House floor Monday at the urging of House Oversight Committee Chairman Jason Chaffetz (R-Utah), former chairman Darrell Issa (R-Calif.), and ranking member Elijah Cummings (D-Md.)

"No longer after this bill is signed into law will an administration Republican or Democratic be presumed that they're going to say no if they possibly can," Issa said. "This bill shifts the burden to the presumption of yes."

"The bill before us today is the product of three years of work, hard work, negotiation and perseverance," Cummings said. "The FOIA Act would strengthen a cornerstone of our open government laws."

"In large part, the FOIA, the way it operates now, is broken," Chaffetz said. "This piece of legislation will make that FOIA process smoother. It'll make it more effective, more efficient."

Just before the bill passed the House Monday, one of its backers Chaffetz inserted an exchange of letters into the record regarding discussions between the oversight panel and the House Intelligence Committee about the legislation. The letters detail "our understanding regarding mutual issues of interest in the bill," the chairman said. (The text of the exchange is reprinted below.)

The bill contains a carve-out inserted at the last minute that affirms that it will not require the disclosure of classified information or of information that "would adversely affect intelligence sources and methods" protected under the current version of FOIA.

A coalition of open government and media groups, OpentheGovernment.org, praised the bill, but denounced the belated changes at the behest of the intelligence panel.

"The changes to the House FOIA bill, added as a result of a last-minute demand of HPSCI [the House Permanent Select Committee on Intelligence], is a pattern that is becoming all too familiar and objectionable,” OpenTheGovernment.org executive director Patrice McDermott said. “The efforts to exempt the Intelligence Community are not acceptable. They are particularly offensive in this bill intended to promote openness across the federal government.”

The House also passed on an expedited basis Monday a bill to improve disclosure of donations to presidential library foundations. When President Barack Obama served as a senator a decade ago, he supported such legislation, but it has never become law. The only disclosure currently required by law pertains to gifts made by federal lobbyists.

Here (from the Congressional Record) are the details on what Chaffetz and House Intelligence Committee Chairman Devin Nunes (R-Calif.) agreed regarding the FOIA reform bill:

DEAR CHAIRMAN CHAFFETZ: On January 7, 2016, your committee ordered H.R. 653, the ``FOIA Oversight and Implementation Act of 2015,'' reported. As you know, H.R. 653 contains several provisions that implicate the work of agencies within the jurisdiction of the Permanent Select Committee on Intelligence. The bill addresses how elements of the Intelligence Community (IC), as defined in section 3(4) of the National Security Act of 1947, may protect sensitive information from disclosure under the Freedom of Information Act (FOIA).

On the basis of your consultations with the Committee, I understand that H.R. 653 has been crafted to avoid compelling the disclosure of any properly classified information, or other information where disclosure would adversely affect intelligence sources and methods protected by an existing FOIA exemption. In particular, I understand that H.R. 653 does not allow or require FOIA requesters to obtain IC records or information, without regard to the age of the records or information, if such disclosure would adversely affect intelligence sources and methods.

I further understand that H.R. 653 does not alter an Intelligence Community element's discretion over the language it chooses to use in denying records or information sought pursuant to FOIA. Specifically, I understand that the requirement in Section 2(f)(3) for federal agencies to include ``a list'' of all denied records preserves an Intelligence Community element's discretion regarding the contents of the required ``list.'' To the extent that elaboration of any list would adversely affect intelligence sources and methods, an IC element may cite to the applicable FOIA exemption to meet the list requirement.

I would appreciate your response to this letter confirming these understandings and would request that you include a copy of this letter in the Congressional Record during its floor consideration. Thank you in advance for your cooperation.

Sincerely,

Devin Nunes,Chairman.

-- House of Representatives, Committee on Oversight and Government Reform,

DEAR MR. CHAIRMAN: Thank you for your January 8, 2016, letter regarding H.R. 653, the FOIA Oversight and Implementation Act of 2015, as reported. H.R. 653 bill addresses how elements of the Intelligence Community (IC), as defined in section 3(4) of the National Security Act of 1947, may protect sensitive information from disclosure under the Freedom of Information Act (FOIA). I am writing to confirm our mutual understanding with respect to the consideration of the bill.

H.R. 653 has been crafted to strengthen FOIA by establishing a strong presumption in favor of disclosure, while also recognizing the need to avoid compelling the disclosure of any properly classified information, or other information where disclosure would adversely affect intelligence sources and methods protected by an existing FOIA exemption. The bill, as reported, does not require agency FOIA staff to disclose IC records or information, without regard to the age of the records or information, if such disclosure would adversely affect intelligence sources and methods. Further, the bill does not alter an IC element's discretion over the language it chooses to use in denying records or information sought pursuant to FOIA. Specifically, the requirement in Section 2(f)(3) for federal agencies to include ``a list'' of all denied records preserves an Intelligence Community element's discretion regarding the contents of the required ``list.''

A copy of our exchange of letters on this matter in the will be inserted into the Congressional Record during consideration of this bill on the House floor. Thank you for your attention to this matter.

Sincerely,

JASON CHAFFETZ, Chairman.

UPDATE (Tuesday, 8:34 A.M.): This post has been updated with the text of the letters.